Harker-Mortlock v Commonwealth Bank of Australia & Anor

This matter came before the High Court of Australia concerning an application for a stay of proceedings. The applicants, James Harker-Mortlock and J.H.M. Pty Ltd, sought the stay pending the determination of their application for special leave to appeal. The first respondent, Commonwealth Bank of Australia, opposed the application. The second respondent, iInvest (in Liquidation) Pty Limited, was also a party to the proceedings.

The primary legal issues before the High Court were whether the applicants had established a reasonably arguable case sufficient to warrant the High Court's appellate attention, and whether the balance of convenience favoured granting a stay. Specifically, the applicants contended that the Court of Appeal had erred in its interpretation of the Farm Debt Mediation Act, particularly concerning the definition of "farmer" and the application of the Act to enforcement actions taken prior to liquidation. They also argued that the Bank's submissions regarding the absence of factual issues as to default and the cessation of the Act's application upon liquidation were factually and legally flawed.

The Court considered the principles for granting a stay pending an application for special leave to appeal, referencing established authorities such as *Jennings Construction Ltd v Burgundy Royale* and *Mercanti v Mercanti*. The applicants argued that their case presented an arguable error in law regarding the Farm Debt Mediation Act, asserting that the Bank's enforcement actions between 2008 and 2012 caused significant damage to the farm, exceeding the Bank's debt. They contended that the Bank's reliance on section 5(2)(c) of the Act was misplaced as it operated prospectively, not retrospectively, and that the issue of default was decided in their favour by the primary judge. The applicants also presented evidence regarding potential prejudice to their property and cultural heritage assets if a stay were not granted, arguing that reinstatement would be impossible if they succeeded on appeal. The Bank, conversely, highlighted the substantial judgment debt and the general principle that courts ordinarily require money to be brought into court in such circumstances.